Disasters, 2004, 28(2): 142–159

Linking Rights and Standards: The Process of Developing ‘Rights-based’ Minimum Standards on Food Security, Nutrition and Food Aid Helen Young

Anna Taylor

Feinstein Intl Famine Centre Save the Children UK Tufts University

Sally-Anne Way

Jennifer Leaning

Grad Inst of Dev Studies University of Geneva

Harvard School of Intl Health

This article examines the recent revision of the Sphere Minimum Standards in disaster response relating to food security, nutrition and food aid. It describes how the revision attempted to incorporate the principles of the Humanitarian Charter, as well as relevant human rights principles and values into the Sphere Minimum Standards. The initial aim of the revision was to ensure that the Sphere Minimum Standards better reflected the principles embodied in the Humanitarian Charter. This was later broadened to ensure that key legal standards and principles from human rights and humanitarian law were considered and also incorporated, in part to fill the ‘protection gap’ within the existing standards. In relation to the food security, nutrition and food aid standards, it was agreed by participants in the process that the human right to adequate food and freedom from hunger should be incorporated. In relation to more general principles underlying the Humanitarian Charter, itself drawn largely from human rights and humanitarian law, it was agreed that there was a need to strengthen ‘protection’ elements within the standards and a need to incorporate the basic principles of the right to life with dignity, non-discrimination, impartiality and participation, as well as to explore the relevance of the concept of the progressive realisation of the right to food. The questions raised in linking rights to operational standards required thought, on the one hand, about whether the technical standards reflected a deep understanding of the values expressed within the legal instruments, and whether the existing standards were adequate in relation to those legal rights. On the other hand, it also required reflection on how operational standards like Sphere could give concrete content to human rights, such as the right to food and the right to be free from hunger. However, there remain challenges in examining what a rights-based approach will mean in terms of the role of humanitarian agencies as duty-bearers of rights, given that the primary responsibility rests with state governments. It will also require reflection on the modes and mechanisms of accountability that are brought to bear in ensuring the implementation of the Minimum Standards. Keywords: Sphere Project, standards, protection, principles, nutrition, food security. © Overseas Development Institute, 2004. Published by Blackwell Publishing, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA.

Developing ‘Rights-based’ Minimum Standards on Food Security, Nutrition and Food Aid

143

Introduction The Sphere handbook was the first attempt to develop globally applicable Minimum Standards of humanitarian response linked with a Humanitarian Charter. A first trial edition was published in 1998, following a two-year consultative process with practitioners and sectoral experts (Gostelow, 1999). The first final edition was the 2000 handbook which covered five sectors including water and sanitation, health, shelter, nutrition and food aid (Sphere Project, 2000). Each sector has its own chapter, consisting of Minimum Standards, associated key indicators and guidance notes. A revision process started in 2002, which led to the publication of the 2004 edition of the handbook (Sphere Project, 2004). This paper discusses the challenges faced during the revision in linking the Minimum Standards to the Humanitarian Charter and then linking the Minimum Standards to the legal instruments on which the charter is based. These challenges are discussed from the perspective of humanitarian practitioners working in the areas of food security, nutrition and food aid, who were involved in the revision process. In preparation for the original 2000 edition of the handbook, an early draft of the Humanitarian Charter was produced by members of the Sphere Management Committee. This was then substantially re-conceived and redrafted in consultation with a human rights and legal specialist. The development of the Minimum Standards and Humanitarian Charter were to all intents and purposes two independent and quite separate processes. This meant that the members of the nutrition standards review group did not have the opportunity to reflect upon the implications of the Humanitarian Charter for the development of the Minimum Standards, key indicators and guidance notes. The terms of reference for the revision in 2002/3, therefore, included strengthening the links between the Minimum Standards and the Humanitarian Charter. Six focal points, one for each sector, were responsible for coordinating and facilitating the revision process. All focal points were committed to a broad-based consultative process, which prioritised input from field-based users, and emphasised consultation with agencies, which regularly used the handbook in disaster response. A workshop held in Boston early in the revision process (Young and Taylor, 2002) made a number of concrete proposals for embedding within the Sphere standards the norms and values found within the legal instruments and codes of practice.1 In addition, as part of the revision process, a meeting, supported by Unicef, was held in Geneva in April 2003, for a number of human rights experts in this field to review the Minimum Standards in all sectors. Part two of the paper discusses the ‘protection gap’ evident in the first edition of Sphere, while part three reviews the meaning of Minimum Standards and shows that the revised standards are indeed linked to existing rights. The fourth and fifth sections take the links a step further by highlighting challenges in the practical application of human rights law and International Humanitarian Law (IHL) in the Sphere handbook’s chapter on food security, nutrition and food aid. Part six considers human rights principles, norms and values and their integration into the chapter. The paper concludes by reflecting on the different approaches through which Sphere aims to improve accountability and the outstanding challenges in doing this in terms of ‘dutybased humanitarianism’ (Slim, 2002).

144

H. Young, A. Taylor, S-A. Way and J. Leaning

This paper is not intended to be a comprehensive discussion of the application of human rights in disaster contexts. It is intended, however, to illustrate some of the challenges in this endeavour as experienced through the Sphere revision process.

The ‘protection gap’ While the Humanitarian Charter takes account of both humanitarian assistance and protection, the 2000 edition of the Minimum Standards focused primarily on assistance with few explicit references to protection. Given the importance of protection issues, particularly in terms of the frequency with which rights are violated in humanitarian crises, this has been a source of criticism of the earlier edition. The previous lack of attention to protection issues was primarily because the international NGOs leading the Sphere Project did not feel ready to define standards for protection, and the ICRC at that time considered that it was not possible to ‘standardise’ protection. Since publication of the first edition of Sphere, a separate NGO initiative has explored common ground among NGOs on protection issues and begun tentatively to suggest some professional standards (Caverzasio, 2001). This initiative’s definition of protection was used during the Sphere revision process: ‘all activities aimed at obtaining full respect for the rights of the individual in accordance with the letter and the spirit of the relevant bodies of law, i.e. human rights law, international humanitarian law and refugee law’ (Caverzasio, 2001: 19). A protection activity was considered to be any activity that aims to prevent or put a stop to a specific pattern of abuse and/or alleviates its immediate effects; to restore people’s dignity and ensures adequate living conditions; and to foster an environment conducive to respect for the rights of individuals in accordance with the relevant bodies of law (Caverzasio, 2001). Closing the protection gap had two key aspects. The first involved revising key indicators and guidance notes to take better account of potential physical threat and insecurity. The 2000 edition included many aspects of assistance which had direct implications for security — for example, in the food aid chapter the safety and personal security issues associated with free food distributions; in the shelter and site planning chapter the standards around safety and location; and in the health chapter where surveillance systems may report information on human rights violations. These sections were reviewed to provide stronger guidance to ensure greater attention to physical protection and minimise security risks. The second aspect of filling the protection gap relates to the broad definition of protection and ensuring that assistance is grounded in respect for human rights and involved strengthening the links between the Minimum Standards, the Humanitarian Charter and human rights in general. This involved a range of considerations, addressed in the rest of this paper. From this perspective, protection means far more than protection from physical threat and insecurity, rather it includes the protection of the rights provided for in the legal instruments, which are embodied in the Humanitarian Charter. Closing the ‘protection gap’ can therefore be seen as one of the key issues in revising the standards to reflect better the principles embodied in the Humanitarian Charter.

Developing ‘Rights-based’ Minimum Standards on Food Security, Nutrition and Food Aid

145

Standards: aspirational, operational or minimum? Early on in the revision process, attention was given to the meaning of ‘Minimum Standards’. Despite the definitions provided in the first edition of the handbook, many users of the handbook had expressed confusion about the difference between Minimum Standards and key indicators. In the practical guidelines of some NGOs, for example, the term ‘standards’ are used in an operational context and refer to the particular level of a given indicator such as the provision of 2,100kcal per person per day to food aiddependent populations. So what these NGOs refer to as standards, in Sphere language corresponded to ‘key indicators’. This motivated the focal points to seek greater clarity around the difference between Sphere Minimum Standards and key indicators. According to the 2000 edition of the handbook, a Minimum Standard is qualitative in nature and specifies the minimum levels to be attained in the provision of food security, nutrition and food aid response. The key indicators are ‘signals’ that show whether the standard has been attained. However, review of the 2000 standards revealed that some existing Minimum Standards alluded directly to people’s rights in terms of ‘the minimum level to be attained’, for example: ‘The nutritional needs of the population are met’ (Sphere Project, 2000). While others were more operationally focused, for example, ‘Recipients of food aid are selected on the basis of food need and/or vulnerability to food insecurity’ (Sphere Project, 2000: 150). These differences are important because the former alludes to rights, as articulated in legal instruments (for example, the right to food), while the latter refers to the operational or organisational considerations of humanitarian assistance, which are much more a matter of technically applied good practice (as reflected in agency policies and guidelines). The focal points responsible for the revision process accepted that some of the existing Minimum Standards applied directly to activities around the project cycle, while the ‘rights-basis’ of other standards, including the nutrition and new food security standards, was recognised as a critical link with the Humanitarian Charter, and the technical content of the legal instruments as related to the right to life with dignity, (including the right to food). These differences in the nature of the Minimum Standards are reflected similarly in the legal instruments themselves, for example, the standards and measures as stated in IHL are very declarative and concrete, although not accompanied by detail or specific examples. In contrast, human rights law (including the Universal Declaration of Human Rights and the International Covenants on Civil and Political Rights and Economic, Social and Cultural Rights (ICESCR)) is written at a relatively high level of principle. The rights in the ICESCR require of state parties both obligations of conduct and obligations of result (Green, 2001), meaning that both process and outcome are relevant from the perspective of human rights. For the development of the new food security standards, the food security and nutrition focal points decided to differentiate clearly between the Minimum Standards and the key indicators in terms of rights-based standards, and operational key indicators. On the one hand, the Minimum Standards were statements of the minimum levels to be attained in relation to people’s rights, while key indicators were concerned with demonstrating that the process and impact of humanitarian assistance should attain the rights expressed in the Minimum Standards. A more rights-based Minimum Standard implies that Minimum Standards may be met without the external intervention of a humanitarian agency, that is through the efforts of those affected and other duty-bearers namely the state, and also that

146

H. Young, A. Taylor, S-A. Way and J. Leaning

individual standards do not stand alone (in keeping with the indivisibility of rights). For example, the food security standards on food production, access to markets and income and employment are all intricately linked, as the impact of disasters on any one of these will impact have an on a household’s activities in the other areas.

Human rights law and the food security, nutrition and food aid chapter In order to fill the perceived ‘protection gap’ within the Sphere Minimum Standards, it was decided during the revision process, that attention must be focused on ensuring that the standards adequately reflected relevant legal standards and principles from human rights and humanitarian law. In relation to the chapter on food security, nutrition and food aid, it was agreed that there was a need to reflect the key legal rights related to food and nutrition as found in international human rights law. Under international human rights law, every person has a right to adequate food and the right to be free from hunger and malnutrition. Rights holders are individuals or groups who have rights that are guaranteed by a ‘duty-bearer’. For each right, there is a corresponding duty to respect, protect and fulfil that right. Under human rights law, the primary ‘duty-bearers’ for the protection and implementation of human rights are governments (states party to the human rights treaties), but humanitarian agencies can also play an important role in supporting governments in their role as ‘duty-bearer’. At the international level, Article 11 of the International Covenant on Economic, Social and Cultural Rights (1966) protects the right to adequate food as part of an adequate standard of living, which includes at a very minimum, the right to be free from hunger. This is reinforced by Article 24 and 27 in the Convention of Rights of the Child, and Article 12 in the Convention on the Elimination of Discrimination Against Women, which also ensure provision for adequate nutrition. Article 1(2) of the ICCPR and of the ICESCR states that ‘in no case may a people be deprived of its own means of subsistence’. All states that have signed these treaties are bound to respect these commitments. The core content of the Right to Adequate Food is interpreted more fully in General Comment 12 of the UN Committee on Economic, Social and Cultural Rights. The General Comment clarifies that ‘the right to adequate food is realised when every man, woman and child, alone or in community with others, has physical and economic access at all times to adequate food or means of its procurement’ and includes: • •

The ‘availability’ of food in a quantity and quality sufficient to satisfy the dietary needs of individuals, free from adverse substances, acceptable within a given culture; and The ‘accessibility’ of adequate food, including both economic accessibility and physical accessibility, in ways that are sustainable and do not interfere with the enjoyment of other human rights.

The new Sphere Minimum Standards on food security (1–4) reflect the importance of guaranteeing these key elements of food security, including access to adequate food through own food production or other sources of entitlement, as well as the stability of food supply and availability through markets (see Box 1). The Minimum Standards

Developing ‘Rights-based’ Minimum Standards on Food Security, Nutrition and Food Aid

147

Box 1 The new Minimum Standards in food security (Sphere Project, 2004) Assessment and analysis standard 1: food security Where people are at risk of food insecurity, programme decisions are based on a demonstrated understanding of how they normally access food, the impact of the disaster on current and future food security, and hence the most appropriate response. Food security standard 1: general food security People have access to adequate and appropriate food and non-food items in a manner that ensures their survival, prevents erosion of assets and upholds their dignity. Food security standard 2: primary production Primary production mechanisms are protected and supported. Food security standard 3: income and employment Where income generation and employment are feasible livelihood strategies, people have access to appropriate income-earning opportunities, which generate fair remuneration and contribute towards food security without jeopardising the resources on which livelihoods are based. Food security standard 4: access to markets People’s safe access to market goods and services as producers, consumers and traders is protected and promoted. also reflect elements of nutritional adequacy, cultural acceptability and adequate quality of food aid assistance. General Comment 12 defines what is meant by the right to ‘adequate’ food, which means ensuring appropriate nutritional elements, but also ensuring food quality and cultural acceptability, with adequacy defined according to local social, economic, cultural, climatic, ecological and other conditions. According to Cotula and Vidar (2002), the ‘right to adequate food’ can be distinguished from the ‘right to be free from hunger’ in the sense that ‘the right to be free from hunger ensures a minimum daily nutritional intake and the bare survival of the person’. The right to adequate food goes beyond freedom from hunger to include also an ‘adequacy’ standard (in terms of quality, quantity and cultural acceptability). The Sphere standards on nutrition specifically reflect both freedom from hunger and the right to adequate food. For example, three standards are devoted to correction of malnutrition and general nutrition support standard 1 states that ‘The nutritional needs of the population are met’. Key indicators which support this standard also articulate its meaning with reference to nutritional requirements for example, ‘There is access to additional sources of niacin (e.g. pulses, nuts, dried fish) if the staple is maize or sorghum’ (Sphere Project, 2004: 137). The right to food (particularly the minimum right to be free from hunger) must be protected at all times, in times of peace, as well as in times of war. In times of war,

148

H. Young, A. Taylor, S-A. Way and J. Leaning

the protection of the right to food can be supplemented by the protections provided under IHL, which comes into effect in situations of armed conflict.

IHL and the food security, nutrition and food aid chapter The extent to which human rights law applies in war has not been fully resolved, but the growing consensus is that important humanitarian principles enshrined in each body of law are compatible and mutually reinforcing.2,3,4 Further, although IHL does not use the language of rights, it does contain many provisions, rules and principles that aim to ensure that people are not denied access to adequate food during times of conflict (Ziegler, 2002; Pejic, 2001). War disrupts all stages of human nutrition (Pejic, 2001) and, by aggravating all three groups of underlying causes of malnutrition (related to food, health and care), war contributes directly to hunger, malnutrition and death. IHL protects civilian access to food in situations of armed conflict (international and civil war), by prescribing certain conduct and prohibiting certain behaviour in order to prevent lack of food or denial of access to food. A basic principle is that parties to an international conflict must at all times distinguish between the civilian population and combatants, and must accordingly only direct their operations against military objectives. This principle is highlighted in the Sphere Humanitarian Charter. Under IHL (Protocol I), the deliberate starvation of civilians as a method of warfare or combat is expressly prohibited and, if employed, would constitute a war crime and a grave breach of IHL (Cotula and Vidar, 2002). A breach does not require starving a population to death, but would occur if a warring party deliberately caused the population to ‘suffer hunger, particularly by depriving it of its sources of food or of supplies’ (ibid.: 4). Under IHL, the prohibition of starvation as a method of warfare means that parties to the conflict must not engage in attacking, destroying, removing or rendering useless of objects indispensable for survival, including wilfully impeding relief supplies, when the purpose of such action is starvation, that is intentionally to deprive the civilian population of its access to food or the means of production. This prohibition extends to deployment of landmines in agricultural areas. It is expressly stated that: Starvation of civilians as a method of combat is prohibited. It is therefore prohibited to attack, destroy, remove or render useless for that purpose, objects indispensable to the survival of the civilian population, such as foodstuffs, agricultural areas for the production of foodstuffs, crops, livestock, drinking water installations and supplies and irrigation works (Additional Protocol I, art. 54, para. 2 and Additional Protocol II, art. 14). Forced displacement of civilians is also prohibited under IHL, with the aim of ensuring that civilians can remain at home, thus maintaining their access to food. IHL also contains rules and principles governing the provision of relief and humanitarian assistance (Pejic, 2001; Ziegler 2002). These protect both the rights of affected civilians caught up in armed conflict (including specific vulnerable groups), as well as the rights of humanitarian agencies to deliver humanitarian assistance. As Ziegler has written:

Developing ‘Rights-based’ Minimum Standards on Food Security, Nutrition and Food Aid

149

the parties to the armed conflict have a duty to ensure that all the basic needs of the civilian population, such as food and water, in the territory under their control are met as far as possible. Parties to the conflict have the primary role in providing assistance to the civilian population living on the territory they control. If these entities cannot provide this assistance, if people lack access to water, then … they must authorise and facilitate impartial humanitarian relief operations and ensure the safety of medical and humanitarian personnel ... and must not divert or obstruct the passage of humanitarian assistance (2002: 25, para. 85). In occupied territories, relief assistance to civilians is protected in the Fourth Geneva Convention. The occupying power has the duty of ensuring the food and medical supplies of the population, and should bring in the necessary foodstuffs, medical stores and other articles if their resources are inadequate. In narrowly defined circumstances the occupying power may requisition foodstuffs, in which case a fair value should be paid (Pejic, 2001). The provisions of common article 3, which is common to the four Geneva Conventions, legally entitle impartial humanitarian organisations to offer their services to the parties to the conflict. Although these services are not spelled out, they are understood to include the provision of food assistance and ‘other measures to ensure that persons affected by a conflict do not suffer hunger and malnutrition’ (Pejic, 2001: 1107). Although there are many violations of IHL in situations of armed conflict, according to the Special Rapporteur on the right to food, there has been significant recent improvement in the development of enforcement mechanisms to ensure the implementation of IHL (Ziegler, 2002). The most important development is the future International Criminal Court, which will make it possible to bring war criminals who use starvation as a method of warfare during armed conflict to justice and punishment (Ziegler, 2002). The General Assembly and the Security Council can also take action in the case of a violation of the rules of IHL. However, their resolutions are only recommendations, and thus not legally binding. Their resolution on the situation in Sudan in which it called on all states to provide assistance, did not prevent one of the worst famines of the 20th century. More recently Security Council Resolution 1,472 noted that the Occupying Power in Iraq has the duty of ensuring the food supplies of the population, and in particular, it should bring in the necessary foodstuffs if local resources are inadequate (UN Security Council, 2003). The Sphere revision process has helped significantly to clarify food security, nutrition and food aid standards for all kinds of conflict, from Geneva Conventions I– IV to Common Article 3. The new food security standards recognise the particular threats in conflict situations, which are potential violations of IHL. For example, households may suffer direct loss of assets, either abandoned as a result of flight or destroyed or commandeered by warring parties. Several NGOs working on human rights and food security issues have reported specific violations to the Special Rapporteur, on which he has acted (Ziegler, 2002). Experienced humanitarian practitioners participating in the discussions were well aware of the abuses and denials of human rights that occur in the midst of a humanitarian crisis, and the potential security risks associated with provision of assistance. There was general recognition of the dual role of humanitarian action (particularly in refugee contexts), on the one hand to provide humanitarian assistance, while on the other to ensure protection. Two examples of protection issues that were incorporated into the food aid chapter are shown below.

150

H. Young, A. Taylor, S-A. Way and J. Leaning

Example 1. Minimising security risks: food is a valuable commodity and its distribution can create security risks, including both the risk of diversion and the potential for violence. When food is in short supply, tensions can run high when deliveries are made. Women, children, elderly people and people with disabilities may be unable to obtain their entitlement, or may have it taken from them by force. The risks must be assessed in advance and steps taken to minimise them. These should include adequate supervision of distributions and guarding of distribution points, including the involvement of local police where appropriate. Measures to prevent, monitor and respond to gender-based violence or sexual exploitation associated with food distribution may also be necessary (172). Example 2. Monitoring and evaluation: at community level, random visits to households receiving food aid can help to ascertain the acceptability and usefulness of the ration, and also to identify people who meet the selection criteria but who are not receiving food aid. Such visits can also ascertain if extra food is being received and where it is coming from (e.g. as a result of commandeering, recruitment or exploitation, sexual or otherwise) (173). Thus, the information collected during the monitoring of food aid can serve also to highlight instances of violations of human rights and can signal protection needs.

Key principles relating to human rights and humanitarian assistance and the food security, nutrition and food aid chapter During the revision process, it was agreed by participants that it was also necessary to incorporate the general principles underlying the Humanitarian Charter, itself drawn largely from human rights and humanitarian law. It was agreed that there was a need to incorporate the basic principles of the right to life with dignity, non-discrimination, impartiality and participation, as well as explore the relevance of the concept of the progressive realisation of the right to food.

Right to life with dignity The Humanitarian Charter highlights the principle of ‘the right to life with dignity’, which is drawn from the UN Charter and the Universal Declaration of Human Rights. The ‘right to life with dignity’ has become a powerful and important principle for the humanitarian system. It was agreed that this must be incorporated into the Minimum Standards in order to reflect the fact that assistance must go beyond provision of lifesaving assistance to protect the dignity of all those assisted. Under human rights law the right to life is one of the most widely recognised human rights. Cotula and Vidar (2002) argue that the right to adequate food is directly linked to the right to life, and therefore in its basic form at least is part of customary international law. The concept of dignity is also a powerful underlying principle of human rights, and means according equal respect for the inherent worth of every human being.

Developing ‘Rights-based’ Minimum Standards on Food Security, Nutrition and Food Aid

151

The principle of dignity is also raised in the Refugee Convention; in relation to ‘returning in dignity’, which implies that the honour and human dignity of individuals must be respected. For example, they must not be separated from their families, must be treated with respect and must be accepted by national authorities who commit to grant them their human rights (Bouchet-Saulnier, 2002). The Sphere Project takes a loose definition of dignity, and states that ‘every person has a different perception of what dignity means, thus emphasising the importance of understanding cultural norms and the importance of participation of people to ensure dignity is respected and protected’. Participants at the Boston workshop expanded the concept of dignity to include issues of autonomy, self-determination, informed consent, confidentiality and ‘cultural attributes’(Young and Taylor, 2002). They also recognised that the way in which Minimum Standards and key indicators are formulated may either reflect a high or low degree of respect for human dignity. Consequently, working groups at the subsequent international workshops were asked to review each Minimum Standard (relating to food security, nutrition and food aid) and consider how it could be achieved with dignity (or without undermining dignity), and the sensitivities required on the part of the outsider and associated training needs. Extracts of the revised standards illustrating how dignity has been incorporated are shown in Box 2. In the food security standards, priority is given to protecting and supporting existing strategies that contribute to household food security and preserve dignity. It is also recognised that certain coping strategies may also undermine dignity, where people are forced to engage in socially demeaning or unacceptable activities (Sphere Project, 2004: 122). Thus, the principle of dignity has been incorporated into the task of identifying and prioritising appropriate disaster response strategies. There are obligations on the part of providers in terms of the process of delivery of assistance, as well as its goals. The behaviour of agency staff can be particularly important in determining the extent to which affected people are respected and their dignity sustained.

Non-discrimination Non-discrimination is the key founding principle of human rights law and it was widely agreed that it must be better reflected in the Minimum Standards. The terms of reference for the revision required the explicit incorporation of six cross-cutting areas, which users of the 2000 edition felt needed strengthening. These included gender, disability, older people, children, environment and HIV/AIDS. The Sphere Project appointed a specialist in each of these areas to support the focal points and the revision process generally. Their role was to raise awareness about the specific issues concerned, to provide relevant resource materials and to organise groups of experts to review and comment on the draft standards. Although this list of cross-cutting issues is not the same or as exhaustive as those relating to non-discrimination listed in the ICESCR (race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status), it is recognition of the importance of non-discrimination, a core human right itself. For the right to food, non-discrimination means that whatever their level, resources are shared fairly and that specific groups are not discriminated against in the distribution of resources by the state (Ziegler, 2002).

152

H. Young, A. Taylor, S-A. Way and J. Leaning

Box 2 Extracts from the 2004 Sphere Minimum Standards, key indicators and guidance. Notes to show how dignity has been incorporated Common standard 2: initial assessment Assessments provide an understanding of the disaster situation and a clear analysis of threats to life, dignity, health and livelihoods to determine, in consultation with the relevant authorities, whether an external response is required and, if so, the nature of the response. _______________________________________________________________ Common standard 4: targeting Key indicator: Targeting mechanisms and criteria should not undermine the dignity and security of individuals, or increase their vulnerability to exploitation Guidance note: Individual dignity may be unintentionally undermined by improper targeting criteria and mechanisms and appropriate measures must be taken to avoid this. Some examples include: * Administrative and community-based targeting mechanisms may ask for information about an individual’s assets. Such questions may be perceived as intrusive and can potentially undermine social structures. * Households with malnourished children are often targeted for selective food assistance. This may undermine people’s dignity since it may encourage parents to keep their children thin so that they continue to receive selective rations. This can also apply when general rations are provided. * Where assistance is targeted through local clan systems, people who fall outside such systems (e.g. displaced individuals) are likely to be excluded. * Displaced women, girls and boys may be exposed to sexual coercion. * People suffering from HIV/AIDS may be exposed to stigma. Confidentiality should be observed at all times. _______________________________________________________________ Food security standard 1: general food security People have access to adequate and appropriate food and non-food items in a manner that ensures their survival, prevents erosion of assets and upholds their dignity. Non-discrimination is now more forcefully embedded within the 2004 edition of the Sphere Minimum Standards, their key indicators and guidance notes. The introduction to the handbook states: ‘Special care must be taken to protect and provide for all affected groups in a non-discriminatory manner and according to their specific needs’ (Sphere Project, 2004: 9). Throughout the handbook, there are numerous references to the needs of specific vulnerable groups in disasters.

Impartiality The principle of impartiality is drawn from IHL, which makes provision for agencies to offer assistance that is humanitarian and impartial in character (based on needs) and

Developing ‘Rights-based’ Minimum Standards on Food Security, Nutrition and Food Aid

153

conducted without any adverse distinction on the basis of race, national or ethnic origin, language or gender. These principles are reflected in the Inter-agency Code of Conduct (Sphere Project, 2004), with impartiality covered under Point 2: ‘Aid is given regardless of the race, creed or nationality of the recipients and without adverse distinction of any kind. Aid priorities are calculated on the basis of need alone’ (ibid.: 317). The humanitarian principle of impartiality means that the provision of relief aid by humanitarian agencies must be proportional to the needs of disaster victims and the local capacities already in place to meet those needs. This necessitates a thorough assessment of needs and is reflected in the Minimum Standards on initial assessment (ibid.: 29), and the Minimum Standards on assessment and analysis of food security (ibid.: 111) and nutrition (ibid.: 115). The other Minimum Standard that has most bearing on the principle of impartiality is the Minimum Standard on targeting, which states: ‘Humanitarian assistance or services are provided equitably and impartially, based on the vulnerability and needs of individuals or groups affected by disaster’ (ibid.: 35). Linked to this is the importance of understanding the nature and source of conflict, which is necessary to ensure that aid is distributed in an impartial way and reduces or avoids negative impact. In conflict-affected settings, an analysis of the actors, mechanisms, issues and context of the conflict should be carried out prior to programme planning. The Sphere standards extend the principle of impartiality to operational concerns including the provision of contracts to groups for programme implementation: ‘fair and transparent contracting procedures are essential in order to avoid any suspicion of favouritism or corruption’ (ibid.: 168).

Participation The principle of participation is also a key principle of human rights and the right to participate is a human right in itself. This means that from the perspective of human rights, participation is important both in terms of process and outcome. The 2000 edition of the Sphere handbook privileged the participation of people affected by disaster by including a Minimum Standard devoted to participation of disaster-affected communities in humanitarian response, which was then revised for the 2004 edition: ‘The disaster-affected population actively participates in the assessment, design, implementation, monitoring and evaluation of the assistance programme’ (28). Participation was also a principle embedded within the revision process, which aimed to bring together a broad cross-section of stakeholders actively engaged in humanitarian response. Regional meetings of ‘practitioner experts’ had more authority and opportunity to make direct changes to the handbook than the international meetings of headquarters experts. This active decentralisation of the review process and devolution of authority to field practitioners may have contributed to wider ownership at a regional and country level, but also created tensions at the international meetings. The revision process focused on consultations with the main users of the handbook and failed to take account of the views of ‘rights holders’ — those people affected by disaster. At a number of regional meetings the possibility of taking the consultation to the level of disaster-affected communities, mediated through community-based fieldworkers, was discussed. However, only one clear example of

154

H. Young, A. Taylor, S-A. Way and J. Leaning

this followed, as the Disaster Mitigation Institute in India followed up with local-level consultations with project beneficiaries in Gujurat (DMI, 2002). This is a deficiency in the revision process and in the future should be recognised as a priority.

Progressive realisation of rights over time Under human rights law, the concept of progressive realisation recognises that a full exercise of economic, social and cultural rights may not be achieved immediately, but that they must be realised over time or ‘progressively’ and ‘to the maximum of [the] available resources’ of the state. However, non-discrimination is not subject to the limitation of progressive realisation. In addition, as duty-bearers, governments are also obliged to take measures or actions towards achieving a full realisation of rights, and deterred from any deliberately retrogressive measures. This means that governments must not adopt regressive policies that lead to deterioration in the current situation of access to food (Ziegler, 2002). In addition: a State violates its obligations under the ICESCR if it ‘fails to ensure the satisfaction of, at the very least, minimum essential level required to be free from hunger’, provided that this failure is due to unwillingness on the part of the State (rather than to inability linked to lack of resources)... (Cotula and Vidar, 2002: 3, section 2.2.2). This means that there is a clear minimum core obligation on all states to provide, at the very least, a minimum essential level of economic, social and cultural rights, including the right to food, regardless of the limitations of progressive realisation (Ziegler, 2002). In the context of the Sphere revision process, it was recognised that the standards are in themselves ‘minimum’. Although progressive realisation was considered helpful in recognising that given pressures of time, access and available resources in an emergency on certain occasions agencies might have to build up to meeting the standards (or rather the indicators). But this does not change the basic obligations of states, nor should it be used as a reason to under-resource responses. In reflecting on how humanitarian agencies could contribute to the efforts of governments to realise progressively the right to food, it was agreed that organisations could play an important role in advocacy. An example of how the principle of progressive realisation has been incorporated into the handbook is illustrated by the following extract which recommends advocacy as a means of progressive realisation of the right to food: Malnutrition, including micronutrient deficiency, is associated with increased risk of morbidity and mortality for affected individuals. Therefore, when rates of malnutrition are high, it is necessary to ensure access to services which correct as well as prevent malnutrition. The impact of these services will be considerably reduced if appropriate general support for the population is not in place e.g. if there is a failure in the general food pipeline, or acute food insecurity, or if supplementary feeding without general support is being done for security reasons. In these instances, advocacy for general nutrition support should be a key element of the programme (Sphere Project, 2004: 144).

Developing ‘Rights-based’ Minimum Standards on Food Security, Nutrition and Food Aid

155

Reflecting on the concept of progressive realisation also raised questions about the time-frame of disaster response, and what impact immediate relief actions have on longer term development objectives. The time-frame for disaster response in the first edition of the handbook was limited to the first six months of a disaster. But this raised serious debate during the revision process: should they be oriented to the immediate post-disaster situation in which minimising human loss, etc. is a major priority, or should they be extended to apply to longer term relief and recovery efforts? One issue was the potential trade-offs — conflict even — between immediate and medium-term objectives and activities. For example, food security standard 1, prioritises meeting immediate food needs where lives are at risk from lack of food, but nevertheless stresses that selection of interventions to address these needs must take account of livelihoods and future vulnerability, in addition to immediate lifethreatening needs. The blurring of the boundaries around when Sphere standards apply refers back to the issue of duty-bearers, the responsibility of the state and the role of the humanitarian agencies. Despite these issues, all workshops recommended that the time-frame for assistance, and therefore application of the Sphere standards, should be reviewed. For example, in Addis Ababa and New Delhi, it was strongly recommend that the scope of application of Sphere standards be broadened and linked to preparedness and transition to rehabilitation, rather than just linked to the acute phase of disasters. It was observed that the humanitarian principle of humanity as articulated by the Red Cross is to both ‘prevent’ and to alleviate suffering, which indicates a longer time-frame that includes preparedness and mitigation activities. A longer time-frame would allow the role of the population and local authorities to be better incorporated, for example, in the context of protracted conflict or post-conflict. In such cases the preceding development activities would serve as a foundation for disaster response and encourage greater recognition and better understanding of the nature of disaster, including history of vulnerability and risk. The 2004 edition has revised its reference to the time-frame and states: The Sphere handbook is designed for use in disaster response, and may also be useful in disaster preparedness and humanitarian advocacy. It is applicable in a range of situations where relief is required, including natural disasters as well as armed conflict. It is designed to be used in both slow- and rapid-onset situations, in both rural and urban environments, in developing and developed countries, anywhere in the world. The emphasis throughout is on meeting the urgent survival needs of people affected by disaster, while asserting their basic human right to life with dignity. Despite this focus, the information contained in the handbook is not prescriptive. It can be applied flexibly to other situations, such as disaster preparedness and the transition out of disaster relief (Sphere Project, 2004: 6).

Towards improved accountability Given that Sphere was originally an NGO initiative, a principal concern of those developing the Humanitarian Charter was to provide a framework of responsibilities for humanitarian agencies within the broader framework of legal and political responsibilities of governments (Section Two of the Humanitarian Charter – Roles and Responsibilities, Sphere Project, 2000: 8) (Darcy, 2004). The Humanitarian Charter

156

H. Young, A. Taylor, S-A. Way and J. Leaning

clearly acknowledges ‘the primary role and responsibility of the State to provide assistance when people’s capacity to cope has been exceeded’ (Sphere Project, 2000), and the legal obligations on States or warring parties to provide such assistance or to allow it to be provided.5 Thus the role of humanitarian agencies is in relation to these primary roles and responsibilities of governments as duty holders, and as discussed by Darcy the role of humanitarian agencies is therefore essentially secondary, and should not undermine the nature of governments’ responsibilities. This produces particular challenges for improving accountability of the humanitarian agencies, as their role is essentially voluntary and driven by moral, not legal or political, forces.6 The lack of any legal or political basis of the Sphere Minimum Standards has been considered by a number of humanitarian organisations to be problematic as the focus on agencies achieving minimum Standards may divert attention from addressing political failures to addressing humanitarian needs (Hilhorst, 2002). The voluntary nature of Sphere is reflected by the lack of any formal endorsement mechanism or other mechanisms (formal or informal) for accountability against the Minimum Standards. Although there have been concurrent efforts to develop such mechanisms, including the work of the British Red Cross reviewing the possible role of a humanitarian ombudsman (Ombudsman Project Working Group, 1998), and the Humanitarian Accountability Project (Herson, 2003). This latter initiative has now evolved to become the Humanitarian Accountability Partnership International, which is committed to upholding the highest standards of accountability through ‘self-regulation’ and ‘collective accountability’ (HAPi, 2004). Members of the Humanitarian Accountability Partnership subscribe to seven principles including to: • • • • • • •

respect and promote the rights of legitimate humanitarian claimants; state the standards that apply in their humanitarian assistance work; inform beneficiaries about these standards, and their right to be heard; meaningfully involve beneficiaries in project planning, implementation, evaluation and reporting; demonstrate compliance with the standards that apply in their humanitarian assistance work through monitoring and reporting; enable beneficiaries and staff to make complaints and to seek redress in safety; and implement these principles when working through partner agencies.

Mitchell outlines three pathways for achieving greater accountability in humanitarian action, including an emphasis on the rights and needs of the beneficiaries or claimants of humanitarian assistance thereby entitling beneficiaries to claim their rights and hold their duty-bearers accountable; emphasis on the humanitarian principles and codes of conduct (for example, the NGO/Red Cross Code of Conduct) adherence to which demonstrates NGOs’ accountability to the broader legal frameworks within which they operate; and third, technical standards, performance indicators, impact indicators and results-based approaches to improve monitoring and evaluation and greater accountability in the use of scarce resources (Mitchell, 2003). Improving the accountability of humanitarian response has been one of two primary goals of the Sphere Project, the other being to improve quality. Since its conception, the Sphere Project has taken three inter-linked pathways to enhancing the accountability of the humanitarian system. First, the Humanitarian Charter emphasises

Developing ‘Rights-based’ Minimum Standards on Food Security, Nutrition and Food Aid

157

humanitarian principles and the rights of beneficiaries to both protection and assistance, and the legal and moral framework of responsibilities. Second, the Minimum Standards represent a consensus between a wide array of humanitarian actors on the minimum levels (of assistance) to be achieved, which reflect the considerable experience and expertise of the NGO community and others of emergency needs. This includes minimising adverse effects of interventions. Last, as a result of the revision process and the commitment to embedding the principles and rights reflected in the Humanitarian Charter within the Minimum Standards, accountability has been strengthened by linking the standards more explicitly to their legal reference points. Nonetheless, there remain challenges in examining what a rights-based approach fully means in terms of the role of humanitarian agencies as ‘duty-bearers’ themselves, even if the primary responsibility for guaranteeing human rights rests with state governments. Further reflection will also be required to improve the modes and mechanisms for ensuring accountability of humanitarian agencies to meeting the Minimum Standards to ensure a ‘duty-based humanitarianism’.

Conclusions and challenges for the future Famine and other nutritional emergencies, particularly in conflict situations are the most extreme example of the denial of the right to adequate food and freedom from hunger. As such, they are worthy of every effort to operationalise the right the food as expressed in the legal instruments. The participatory process through which the existing handbook was revised and the new food security standards were developed is a unique example of coalition and consensus building among a diverse group of humanitarian stakeholders not limited to the NGO community. It represents a new path to making legal rights practically and operationally relevant to humanitarian organisations. This process has contributed towards narrowing the gap between social and economic rights on the one hand, and technical standards on the other. It is a step closer but not a consistent linking between practice and law. More work is needed in order to make the standards an operational reality. As Slim notes, by formally writing about humanitarian duties and responsibilities in war ‘NGOs may just help to bring these obligations into political existence’ (2002: 3). Finally, the process itself was educational for the individuals involved. Participants quickly realised how closely their work is linked to the realisation of people’s rights and that there is a legal framework for what they do. Focal points had to be skilled in participation, leadership and consensus-building — major challenges for which they were not necessarily well-equipped. However, individual learning processes do not necessarily equate with wider institutional learning, and it is uncertain how far this individual learning filtered back and was supported or incorporated within the humanitarian organisations for whom participants worked. This paper demonstrates the ways in which the revised handbook does indeed show far stronger links to the human rights instruments. Some of these links were actively sought from the beginning, while some emerged spontaneously from the process. What is certain is that more will evolve as humanitarian actors worldwide continue to respect, protect and fulfil the right to food. For the future, it will be important to evaluate how meaningful the rights basis of Sphere is to users of the handbook, and how that affects actions and decisions in the midst of humanitarian crises.

158

H. Young, A. Taylor, S-A. Way and J. Leaning

Acknowledgement The authors would like to acknowledge the helpful inputs and advice from the anonymous reviewers. The authors were actively involved in the Sphere revision process: Jennifer Leaning advised on the linking of rights and standards at the beginning of the revision process and later at the meeting of legal experts held by the Sphere Project in Geneva in April 2003; Anna Taylor was the focal point for the revision of the nutrition standards; Sally-Anne Way gave specific advice about the right to adequate food and right to freedom from hunger and more generally about linkages between HRL and the Sphere Minimum Standards; Helen Young was the focal point for the development of the new food security standards.

Notes 1. A presentation by Jennifer Leaning on rights and standards at this workshop, stated the issues of linking rights and standards clearly: are the principles in the Humanitarian Charter adequate, and do the technical standards reflect any deep understanding of the values expressed within the legal instruments? 2. See Goldman (1998). 3. See O’Donnell (1998). 4. See Hadden and Harvey (1999). 5. Ziegler (2002) argues that the justiciability of the right to food must be fully established, in order that governments can be held to account in a court of law for not meeting their obligations under international law. 6. The mandate of certain humanitarian organisations is underpinned by legal instruments, including the International Committee of the Red Cross, Unicef and UNHCR.

References Bouchet-Saulnier, F. (2002) The Practical Guide to Humanitarian Law. Rowman & Littlefield, Lanham. Caverzasio, S.G. (2001) Strengthening Protection in War: A Search for Professional Standards: Summary of Discussions among Human Rights and Humanitarian Organizations. International Committee of the Red Cross, Geneva. Cotula, L. and M. Vidar (2002) The Right to Adequate Food in Emergencies. FAO Legislative Study 77, FAO Legal Office, Food and Agriculture Organization of the UN, Rome. Darcy, J. (2004) Locating Responsibility: The Sphere Humanitarian Charter and Its Rationale. Disasters 28(2): 112–23. Goldman, R.K. (1998) Codification of International Rules on Internally Displaced Persons. International Review of the Red Cross 324: 463–6. Gostelow, L. (1999) The Sphere Project: The Implications of Making Humanitarian Principles and Codes Work. Disasters 23(4): 316–25. Green, M. (2001) What We Talk about When We Talk about Indicators: Current Approaches to Human Rights Measurement. Human Rights Quarterly 23: 1062–97. Hadden, T. and C. Harvey (1999) The Law of Internal Crisis and Conflict. International Review of the Red Cross 833: 119–33. HAPi (2004) The Humanitarian Accountability Partnership International. See http://www.hapinternational.org/en/31 March 2004. Herson, M. (2003) Putting the ‘H’ Back into Humanitarian Accountability. Humanitarian Exchange 24: 4–6. Hilhorst, D. (2002) Being Good at Doing Good? Quality and Accountability of Humanitarian NGOs. Disasters 26(3): 193–212.

Developing ‘Rights-based’ Minimum Standards on Food Security, Nutrition and Food Aid

159

Mitchell, J. (2003) Accountability: The Three-lane Highway. Humanitarian Exchange 24: 2–4. O’Donnell, D. (1998) Trends in the Application of International Humanitarian Law by United Nations Human Rights Mechanisms. International Review of the Red Cross 324: 481–503. Ombudsman Project Working Group (1998) An Ombudsman for Humanitarian Assistance. A Report on the Findings from a Feasibility Study. Presented to the World Disasters Forum. British Red Cross, London. Pejic, J. (2001) The Right to Food in Situations of Armed Conflict: The Legal Framework. International Review of the Red Cross 83: 1097–1109. Slim, H. (2002) Claiming a Humanitarian Imperative: NGOs and the Cultivation of Humanitarian Duty. Paper for the seventh annual conference of Webster University. Sphere Project (2000) Humanitarian Charter and Minimum Standards in Disaster Response. The Sphere Project, Geneva. Sphere Project (2004) Humanitarian Charter and Minimum Standards in Disaster Response (rev. edn.). The Sphere Project, Geneva. UN Security Council (2003) Resolution 1472 (2003) Adopted by the Security Council at Its 4,732nd meeting, 28 March, S/RES/1472 (2003), New York. Young, H. and A. Taylor (2002) Boston Sphere workshop. September, Boston. Ziegler, J. (2002) Economic, Social and Cultural Rights. The Right to Food. Report by the Special Rapporteur on the Right to Food. Commission on Human Rights, Fifty-eighth session, E/CN.4/2002/58, United Nations Economic and Social Council.

Address for correspondence: Helen Young, 16 Spencer Road, Twickenham, Middlesex TW2 5TH, UK. E-mail: